Understanding Ed O’Bannon’s Suit Against the N.C.A.A.

Video The implications of O’Bannon v. N.C.A.A., a class-action lawsuit that could change the economics of college sports.

By STEVE EDER and BEN STRAUSS

June 9, 2014

In the court of public opinion, the N.C.A.A. has been on trial for quite some time now.

Its critics say college athletics have become a big business that brings in billions of dollars on the backs of unpaid athletes. Its defenders argue that players are student-athletes who are fairly compensated with tuition scholarships and the opportunity to compete.

This contentious debate will be explored in federal court beginning Monday, when the former U.C.L.A. basketball star Ed O’Bannon’s antitrust lawsuit against the N.C.A.A. is scheduled to go to trial.

In court, O’Bannon’s lawyers will ask United States District Court Judge Claudia Wilkin to rule that the N.C.A.A. cannot prohibit college players from sharing in the proceeds from broadcasts and video games in which they — or their likenesses — are featured.

Nearly five years ago, O’Bannon sued the N.C.A.A., as well as EA Sports, the video game maker, and the Collegiate Licensing Company, which handles licensing rights for many universities. Lawyers for O’Bannon have reached a $40 million settlement with EA Sports and the Collegiate Licensing Company — but the case against the N.C.A.A. goes on.

Q. Who is Ed O’Bannon and why is he suing the N.C. A. A.?

A. O’Bannon, 41, led U.C.L.A. to the 1995 N.C.A.A. championship in his senior season. He was the most outstanding player in the tournament and a consensus all-American. He was drafted ninth over all by the New Jersey Nets, but his career fizzled.

Many years later, O’Bannon, now a car salesman in the Las Vegas area, recognized himself on a video game and was troubled that his likeness was being used without his consent — or payment.

O’Bannon then become the lead plaintiff in the antitrust suit filed in July 2009. He was later joined by current and former players, including Bill Russell and Oscar Robertson, and the lawsuit was certified as a class-action.

Q. What will the lawyers for O’Bannon be arguing? What are they hoping to accomplish with this trial?

A. The plaintiffs’ lawyers will seek to prove that the N.C.A.A. violated antitrust laws by conspiring with its partners to block college athletes from being paid for the use of their names, images and likenesses in broadcasts and video games.

They are seeking an injunction that halts the N.C.A.A.’s rules prohibiting universities from paying players for their publicity rights. “Free-market forces would then determine whether schools decide unilaterally to compensate college athletes,” a pretrial filing by the lawyers explains.

Q. What is the N.C.A.A.’s defense?

A. The N.C.A.A. will argue that the appeal of college sports lies in amateurism and that if its amateur rules are compromised its future will be jeopardized. Lawyers will contend that N.C.A.A. rules protect competitive balance among schools and conferences and also allow colleges to provide a great deal more scholarships.

Judge Wilken has said that Title IX, the gender equity rules governing higher education, will have no impact on this case. It is solely about men’s Division I basketball and Football Bowl Subdivision athletes.

Q. How will this trial be set up?

A. Judge Wilkin will preside over the trial and decide whether to issue the injunction, likely sometime this summer. The trial is expected to last about 15 days.

There will not be a jury, so the way the lawyers present their cases will be far less theatrical than what you sometimes see on television. For example, there will be no opening statements.

The trial will not be televised, in line with the rules of federal courts.

Q. Who are the lawyers who will be making the case for both sides?

A. The lead lawyer for the players is Michael Hausfeld, the chairman of Hausfeld LLP, which is based in Washington. He has been a litigator for over 40 years and has a number of noted cases on his résumé. He will be joined by four other lawyers from multiple law firms.

For the N.C.A.A., the lead trial lawyer will be Glenn Pomerantz, a partner based in Los Angeles with Munger, Tolles & Olson. Pomerantz, who recently worked on behalf of the Department of Justice as it sought to block the merger of AT&T and T-Mobile, will be working with a team of several other lawyers.

Donald Remy, the N.C.A.A.’s chief legal officer, will not be a part of the trial team, but is expected to be in the courtroom. Remy, who was vice president for litigation at Fannie Mae from 2000 to 2006, joined the N.C.A.A. in 2011 and has led efforts to defend the organization from an array of legal threats.

Q. A lot of witnesses will be called to testify for both sides. Who are some of them?

A. The plaintiffs’ list includes more than a dozen former players — among them O’Bannon, Robertson and Russell — who will talk about their experiences as college athletes. Expert economists will also be called.

The N.C.A.A.’s witness list includes a host of officials in the organization, like David Berst, a longtime executive, as well as conference commissioners (the Big Ten’s Jim Delany), university presidents (Mary Sue Coleman from Michigan) and athletic directors (Bernard Muir of Stanford).

Mark Emmert, the president of the N.C.A.A., appears on both witness lists. He will be called by the defense but examined directly by both sides.

Q. What happens if O’Bannon wins? Will there still be a college football season?

A. Mostly likely, yes. But things could get interesting quickly. If the judge issues the injunction that the players’ lawyers are seeking, it would block the N.C.A.A. and its members from moving forward with the status quo in their television deals and other licensing agreements. The N.C.A.A. would be almost certainly to appeal the ruling, and a higher court could stay the injunction while it reviews the case.

As for the long-term impact, a verdict in O’Bannon’s favor could give colleges or conferences the option to make financial offers to high school recruits for their publicity rights, as a way to lure them to campus.